Landmark "Bad Man" Lawsuit Against US For Sexual Assault Of Native American Teen Settled

RAPID CITY, S.D., -- Adam Horowitz, an attorney with Mermelstein & Horowitz, P.A., announced today that a settlement of $650,000 was reached in a landmark case filed against the United States government. The U.S. government appealed a federal court order to pay nearly $600,000 to Lavetta Elk, an Oglala Sioux teenager sexually assaulted by her military recruiter in early 2003. (Elk v. United States, Court of Federal Claims, Case No. 05-186L)

Sgt. Joseph Kopf, a U.S. military recruiter, sexually assaulted Elk, a 19-year-old Oglala Sioux woman, on a remote part of the Pine Ridge reservation. Prior to the assault, Sgt. Kopf had been working with Lavetta to assist her in achieving her lifelong dream of joining the U.S. Army.

Elk's attorneys brought suit in the Court of Federal Claims on her behalf pursuant to the seldom-used "Bad Man" clause of the Treaty of April 29, 1868 between the United States and the Sioux Tribe, which provides:

"If bad men among the whites. . . shall commit any wrong upon the person or property of the Indians, the United States will...reimburse the injured person for the loss sustained."

In a landmark decision entered on April 29, 2009, Judge Allegra of the Court of Federal Claims ruled for the first time that a Native American may rely on the Treaty to recover "pain and suffering" damages against the United States. The Treaty had never before been used to recover mental, emotional, or physical damages; it had only been used to reimburse for property losses.

The ruling was appealed by the United States to the Federal Circuit Court of Appeals. The parties settled before the case was heard by the appellate court.

Miami-based attorney Adam Horowitz said, "Lavetta Elk is a courageous individual. She had the strength to take this case to trial against tremendous odds and adversity. This settlement is a victory for all Native Americans. It leaves intact the Court's ruling that a Native American may recover pain and suffering damages from the United States after being injured by a government employee. This landmark ruling establishes legal rights for Native Americans never before recognized by any U.S. Court."